Sunday, June 11, 2017

Did Carlos' client try to smear Belhaven & employee?

A former Belhaven employee won a sexual harassment lawsuit, while Carlos the Clown's client stands accused of destroying evidence.  Erica Stewart sued Belhaven and its employee, Tarold Durham in U.S. District Court last year for sexual harassment.  Attorney Carlos Moore represented Ms. Stewart. Judge Carlton Reeves granted Durham's motion for summary judgment. However, Belhaven is a pit bull that won't let go of something between it's jaws, as it is also seeking sanctions against Ms. Stewart for getting rid of her cellphone after she was asked to provide text messages for discovery.  It also didn't help Mr. Moore's case upon discovering his client sent a nearly-nude selfie of herself to Mr. Durham before he sent a picture of his um, member, to her. 

Ms. Stewart applied for the position of Receptionist at Belhaven.  She interviewed with Mr. Durham on November 30, 2015.  She alleges in the complaint:

Defendant Durham had a pattern and practice of making offensive sexual advancements to Plaintiff.

Initially, Defendant Durham engaged in sexual advancements toward Plaintiff via social media and then the activity escalated to text messages resulting in an obscene photograph of Defendant's male reproductive organ (penis) being sent to Plaintiff with the caption "Can I get something for the interview?" 
Defendant Durham used his position as the hiring official when making sexual advancements to the Plaintiff.
She filed an EEOC complaint, but the EEOC could not determine if any violations of the law occurred.  The federal lawsuit charges the defendants with sexual harassment, intentional infliction of emotional distress, and negligent hiring and supervision.  Ms. Stewart asked for compensatory and punitive damages as well as attorney's fees.  The lawsuit was filed on September 21, 2016.  Remember that date.

Mr. Durham filed a counterclaim against the plaintiff on  November 9.  He stated her accusations were false and caused him to lose his job and good reputation.  He asked for damages against the plaintiff.  He is represented by Attorney Gerald Mumford.

Belhaven asked the court to slap the plaintiff with some sanctions and dismiss the lawsuit.  This is where the case gets interesting.  Belhaven told Mr. Moore in writing to preserve all cellphones owned by his client as well as all text messages  and electronic communications between Ms. Stewart and Mr. Durham, in a letter sent to him on September 23, 2016, two days after the lawsuit was filed.   Ms. Stewart submitted an affidavit to the court on May 11, 2017 that stated she had not deleted any text messages or other digital communications.  She submitted to Belhaven a set of answers to interrogatories on February 14, 2017 that stated she was "the current custodian" of the cellphone used to communicate with Mr. Durham via text messages.

However, the phone was traded in to AT&T for another phone.  Belhaven's lawyer asked for the phone in an email sent to Mr. Moore on April 28, 2017 after she mentioned a broken iphone in her deposition.  The phone was not provided to the defendants so Mr. Fijman sent this email to Carlos the Clown on May 9:

It has been over ten days since the University  requested the production of Ms. Stewart ' s phone, and we have not received a response. As you'll recall,  she testified  she had it in her possession after the filing of  the lawsuit . As you'll recall, I sent you a letter on September 23, 2016, in which you were advised of your duty to "immediately preserve and sequester any and all mobile telephones and/or other digital devices belonging to Ms. Stewart". Please advise by close of business on Wednesday whether Plaintiff will be producing the phone. The University also requests that Plaintiff supplement her responses to its written discovery with the photograph she testified that
she sent to M Durham.
Mr. Moore replied later that day with this email from his legal assistant that stated his client no longer had the phone:

I just spoke with Erica and she traded the phone with AT&T, Pear Orchard Rd, Ridgeland­ Jackson, MS area. She never indicated today or in past responses that she worked for  AT&T.  As for the photo, she doesn't have it, but will try to retrieve it from icloud.
 Remember, Belhaven told Mr. Moore to keep the phone two days after he filed his lawsuit in September. Belhaven pulled no punches in its motion for sanctions.  It said the lawsuit was based on "38 days worth of text messages" between Erica Stewart and Tarold Durham.  Belhaven expressly told Mr. Moore in the September 23 letter to preserve the cellphone as well as any text messages and other digital media on the cellphone.  The phone was never produced and Mr. Moore informed Belhaven nearly eight months later that his client had turned in the phone to AT&T.   Magistrate Linda Anderson also issued an order to compel discovery on March 7 that told Ms. Stewart to produce all text messages  and notify the defense if she had deleted any of them.



The claims for sexual harassment were dismissed, although Ms. Stewart was allowed to pursue her claim of intentional infliction of emotional distress.  

Judge Reeves had enough of the farce and dismissed the case on Mr. Durham's motion for summary judgment on June 9.  The court eviscerated the complaint:

Perhaps Durham’s most egregious act was texting Stewart a picture of an engorged penis along with the message, “Your [job] interview will be next week. . . . Can I get something for the interview?” The advance was coarse, embarrassing, stupid, and as described by his counsel, “unbecoming of a married Christian father of twin boys.” Be that as it may, the evidence does not show it actually caused Stewart to suffer emotional distress.

The day after Durham sent the picture of the tumescent penis, Stewart replied, “you can get [a] hug and kiss after the interview!” She then added, “Sooo I found myself thinking about you.” The two flirted back and forth: Durham called her “boo”; Stewart called him “Hun.” When Durham wrote “I miss you,” Stewart responded “I miss you too” and sent an emoji blowing him a kiss. She also revealed she had once participated in a threesome, texting “I like stuff like that . . . so if you become my boo. Stuff like that comes with me.” Later she wrote, “we can ‘celebrate’ once I get the job!” along with three winking emoji, and invited Durham to join her and a friend for a drink at a local restaurant.
Needless to say these responses do not indicate distress. Stewart’s deposition testimony confirms as much. Counsel opposite asked, “Now, by telling him you’ll hug and kiss him, you don’t sound particularly upset in your response about receiving the penis picture; is that correct?” Stewart answered, “No, I’m not -- I didn’t sound upset.” When asked again whether she was “upset in any way” over the photo, she replied “no.”
Indeed, the court stated in a footnote:

 1 After the briefing on this motion closed, Stewart located and produced a nearly-nude, salacious selfie she had sent Durham. The supplemental production was vague as to the selfie’s date, but Stewart’s deposition testimony indicates that she sent Durham the selfie before he sent her the penis photo.  In other words, Durham’s pornographic photo of a penis was sent in response to Stewart’s scantily-clad selfie.
However, Belhaven is not done with Erica Stewart and Carlos the Clown, even though the lawsuit was dismissed.  Belhaven filed a supplement to its motion for sanctions the same day as the dismissal.

This Supplement is provided in light of the Magistrate Judge’s Order of June 8, 2017, and the report issued on June 9, 2017 by the third-party computer forensics specialist who examined Plaintiff’s iCloud and her current iPhone.1 The report shows that the photograph produced by Plaintiff to the parties and the Court on May 31, 2017, which was represented to the Court to be from November, 30, 2015, was  shown not to be from any 2015 data in Plaintiff’s iCloud, but instead had a creation date of August 11,  2016.   The  Pileum  Report  also  showed that  the image  had multiple modification dates, the most recent being shortly before 10:00 p.m. on June 7, 2017, the same day of the hearing at which the Court ordered Plaintiff’s iCloud and iPhone examined.

The examination of Plaintiff’s iCloud reveals that her express representation to the Court that the photograph was from November 30, 2015 is clearly false, in yet another example of the deliberate spoliation and misrepresentations perpetrated by the Plaintiff in this matter....
Remember that nearly nude selfie?  Belhaven does:

1. On May 31, 2017, Plaintiff’s counsel e-mailed to counsel for all Defendants, as well as the Magistrate Judge and District Court Judge, a photograph, which Plaintiff represents is a “selfie” photograph of herself wearing only underwear, which the e-mail states she sent to Defendant Tarold Durham on November 30, 2015.
2 Plaintiff, through counsel, represents that  this  purported November 30, 2015 photograph  was  just  discovered on Plaintiff’s  iCloud.  The appearance of the purported 2015 photograph comes after more than six months of discovery and after a Court-ordered sworn statement that she had already produced all relevant photographs....

 It gets better:

•  The Pileum Report shows modifications were being made to the image as recently as June 7, 2017 at 9:51 p. m., approximately seven hours after the Court ordered Plaintiff’s iCloud and iPhone to be forensically examined.
•  The Pileum Report also shows modifications were being made to the image on  May 30, 2017 and May
31, 2017, prior to its production to the parties and the Court on May 31, 2017.8
• The Pileum Report also shows Plaintiff’s iPhone was activated as a new phone on August 20, 2016, which gives lie to Plaintiff’s earlier discovery responses in February 2017 that she was in possession of her original phone, and then subsequently traded it in at AT&T, resulting in the destruction of the ESI.9
Belhaven asked the court to order Erica Stewart and Carlos Moore to pay its attorney's fees.  Keep the ending of this case in mind when watching this 2016 video where some grandstanding took place:



Kingfish note: It is not yet known if Mr. Moore will blame the state flag for any of the problems in his lawsuit, or he couldn't tell his client not to turn in her phone because he was receiving death threats due to his state flag lawsuits.

Durham's attorney, Gerald Mumford, also  issued this statement last week:

Today, United States District Court Judge Carlton W. Reeves granted Summary Judgment dismissing Erica Stewart's remaining claims against Tarold Durham.

On September 21, 2016, Erica Stewart brought a Title VII Sexual Harassment and state law claims of Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress claims against Belhaven University and Tarold Durham, individually.

The court previously dismissed Stewart's Title VII claims against Tarold Durham. With this ruling, Mr. Durham is completely vindicated from Ms. Stewart's outlandish claims which caused Mr. Durham to lose his employment and subjected him to public shame.

The Court said, "The question of today is not whether Durham' s conduct was " unsavory'" the word Durham' s counsel used to describe Stewart's conduct. Nor is it whether Durham' s behavior constituted sexual harassment in violation of Title VII. The issue is whether he intentionally or negligently caused Stewart to suffer emotional distress. The available evidence indicates the answer is no."

Every day in this country, women are subjected to sexual harassment in the workplace and a  false claim such as  this only serves to devalue  their cases and silence  their voices.

Documents posted below
P. 1: Belhaven's motion to supplement  motion for sanctions & dismissal
P. 6: Order granting motion for summary judgment
P. 9: Plaintiff's response to Durham's motion for summary judgment
P. 12: Order on motion to compel
P. 13: Order on motion to dismiss
P. 18: Belhaven's motion for sanctions and dismissal
P. 22: Erica Stewart affidavit
P. 24: Email chain
P. 27: Erica Stewart's response to interrogatories
P. 30: September 23 letter to Carlos Moore
P. 32: Belhaven answer to complaint
P. 40: Durhams counterclaim
P. 50: Complaint against Durham and Belhaven









21 comments:

Anonymous said...

Hope the university takes her and Carlos the Clown to the cleaners, but Mr. Durhams claim that she caused him to lose his job and good reputation is false. Sending a picture of your penis caused you to lose your job and good reputation. The university had nothing to do with it other than happening to be the target with money for this former stripper.

Anonymous said...

Mark Fijman is a very good, underrated lawyer. More people should just hire him and take a pass on the $400 an hour bills from his better-known partners.

Anonymous said...

I'm glad Judge Reeves let us know that the member was "engorged."

Anonymous said...

What a classic case of a promiscuous job-seeking heifer tagged teamed with the infamous Carlos Moore.

Anonymous said...

The heading reads "Carlos's" Really? How about "Carlos'"

Anonymous said...

Carlos aside, why do people send penis pics? That actually works? If only I had known decades ago.

Anonymous said...

June 11, 2017 at 6:56 PM = Gets off on grammar and punctuation

Anonymous said...

Actually, "Carlos's" is acceptable.

Oh, and Judge Reeves gets bonus points for "tumescent."

I think he might have enjoyed writing this opinion.

Anonymous said...

We used to send notes to girls. Do you like me? Oh had we had a cell phone.

Anonymous said...

Several people told me that Carlos is a total joke and a laughing stock in most lawyer circles. Has he ever defended a white client? All he has is his race to blame on others it seems. Complete moron and this is laughable if people actually pay him for representation.

Anonymous said...

This makes no sense. How did she win a sexual harassment lawsuit if she and the person she sued were both sending nude photos of themselves back and forth?

Are we to assume she sent a shot of herself and then hollered STOPPIT while he was in the midst of engorging?

Anonymous said...

9:13/ Try reading again. She did not win a sexual harassment lawsuit. She filed one. She lost. He 'won' because he didn't lose. Follow now?

Anonymous said...

This is the university that requires a statement of faith when applying for jobs?

Anonymous said...

9:47 - Thank you for the clarification. I guess I was engorging when I should have been engaging. Totally misread who won. (9:13 - In Inches)

Anonymous said...

hahaha 8:51 pm

You're a bigger "moron" than Carlos if you think he's turning away white clients or that white clients are begging him to defend them!

It's a nice added touch to that you just accept what "several people" tell you.

And, as an FYI to others, ATT doesn't save text messages that are read for very long and when they transfer data to a new phone, some of it gets lost. Phone's stop It's probably retrievable and all could have been photographed. A really smart lawyer would know that phones stop working and texts don't stay visible and specified how the data should be saved.

This is just Key Stone Cops play lawyer from start to finish by everyone involved.

Anonymous said...

over the years I realized that lower income, ill educated people gravitated to lawyers known for outrageous claims, loud voices, and reputations for willing to do anything. these type lawyers rarely turn any client away and usually tell them what they want to hear. they usually charge a modest retainer "up front", file suit, and then do little to pursue the action. When they attract hundreds of these type clients, the money adds up fast. I knew one of those who kept a "form" reply to bar complaints on his computer, but to my knowledge, he never was disciplined more than a private reprimand. Mr. Moore seems to be a classic member of that fraternity.

Anonymous said...

Durham's facebook profile page is a picture of OJ Simpson as the verdict is being read to him. Sounds remarkably appropriate.

Kingfish said...

No one accused him of being too bright.

Anonymous said...

Who?

Anonymous said...

Carlos the clown. Keep on pluggin' Carlos. Good pub...bad pub, it's all the same. Your name is on a thousand lips. Sooner or later you'll strike gold. Just stay out of jail. Keep pluggin'.

Anonymous said...

8:23, I would agree with you, but then we'd BOTH be wrong.

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